What's Up in the 8th
Another Black Thursday down out the Lakeside Courthouse, where the best news was that the court probably shaved forty years off a defendant's sentence, leaving him with "only" twenty to do. I thought I had a bad week because I lost two appeals, but then I saw that so did Verko Vargas. Problem was, he was the defendant.
Vargas' first tale of woe is easily summarized: he sold drugs to a confidential informant, and claimed that his attorney should have filed a motion to compel the State to disclose the identity of the informant and produce him at trial. The law on this is simple: the identity must be disclosed if the informant would be critical to the defense, as when the informant is the only witness to the drug transaction. That didn't occur here; at least two detectives witnessed the deal go down.
His second case, though, is more factually and legally interesting, because it presents the question of whether tossing oneself into a ravine constitutes obstructing official business. The details are that Vargas had taken his girlfriend's car without permission, crashed it, and when the police were closing in, either intentionally or unintentionally went over a cliff. The Strongsville Police and Fire Departments, a hospital rescue team, Cleveland Metropark rangers, and just about everything short of a Delta Force team were necessary to extract him.
The court devotes several pages to trying to pound the square peg of the facts of the case into the round hole of obstructing official business. It cites numerous other cases, all of which are easily distinguishable or not particularly well thought out, and produces an opinion which could easily be read as holding that "fleeing from pursuing police may be sufficient to sustain a conviction for obstructing official business." The extraordinary efforts the police had to go through to apprehend Vargas might fit into that offense, and an opinion more tailored to that analysis would have been preferable.
Flight gets a workout in one of the cases I handled, State v. Ranzy. (The other one, State v. Gaines, stands for the unremarkable proposition that when a policeman sees the defendant firing a gun into a house, and they find the bullethole, a claim that a conviction for discharging a firearm into a habitation is based upon insufficient evidence or against its manifest weight is a decidedly Quixotic undertaking.) The only real issue with any traction in Ranzy was the court's giving of a flight instruction. There's case law holding that such an instruction is warranted where the defendant took extraordinary steps to evade capture, like leaving the jurisdiction. Here, though, the only evidence of flight was the fact that the defendants didn't linger at the scene. In fact, their departure wasn't really in the nature of flight; when last seen by various witnesses, they were pursuing the victim down the street, shooting at him. The court nonetheless finds that it was "within the province of the jury" to determine whether this was evidence of flight. The issue receives better treatment in State v. Vanderhorst, the case involving the co-defendant. There, while not declaring the instruction was error, the court hints that it was so, but then finds it harmless in light of the other evidence of guilt.
The case has a sad backstory. Ranzy and Vanderhorst, who had two children together, initially pled to attempted felonious assault without any gun specifications, and all things considered, Ranzy at least was pretty much assured of getting probation. But the pair took umbrage at the comments made by the victim at the sentencing hearing, and asked to withdraw their pleas. The court did so, and the two wind up with convictions of aggravated robbery, attempted murder, and thirteen-year sentences.
That's seven years less than David Trotter is likely to do, though. Trotter, 42 at the time, thought it a good idea to invite some of his son's middle-school friends to a party and give them alcohol. One of them, a 14-year-old girl, got drunk and was put in one of the upstairs bedrooms, only to awake and find Trotter performing oral, and then vaginal, sex on her.
Much of the court's opinion in State v. Trotter deals with an evidentiary question, and bolsters a point I've repeatedly made: one of the considerations in deciding whether to try a case to the bench or a jury is that, by choosing the former, you're probably going to forego a lot of appeal issues, especially those dealing with evidence. And so it is here. The trial court had one of the witnesses read portions of his police statement into the record, supposedly to "refresh his recollection." But the proper procedure for that is to first establish a foundation -- the witness must indicate that his memory is foggy on the point, and that reading the statement might refresh his recollection -- and then have the witness silently read it. The statement can be read into evidence if it's "past recollection recorded," and the State tried to argue that here, but for that exception to hold up the witness must acknowledge that the statement accurately reflected his knowledge at the time it was made, and the witness hadn't done it.
Normally, these errors get fluffed off on the grounds that a judge is presumed to know the law and not consider inadmissible evidence. Two months ago, in In re C.T. (discussed here), the 8th District rejected that argument and reversed a juvenile delinquency finding, holding that "when the juvenile court admits evidence over an accused juvenile's objection, it is counterintuitive to conclude that the juvenile court would then proceed to disregard that same evidence as being irrelevant, immaterial, or incompetent when rendering its judgment." That was 404(B) evidence, but the same would seem to apply here. Especially noteworthy is that the opinion in Trotter indicates that the judge at one point ordered the witness to read from the report; given that, it's unlikely that the judge would have ignored what the witness read. Still, the court relies on the presumption it rejected in C.T., and rejects the assignment of error.
The only good news for Trotter -- and indeed, for any defendant last week -- comes in sentencing. Trotter was convicted of four counts of rape -- one each for the oral and vaginal intercourse, and under two theories, force and substantial incapacity -- as well as two kidnapping counts. Apparently, the concept of allied offenses was only a distant rumor at the sentencing, because Trotter wound up with maximum consecutive sentences of sixty years. Of course, the counts for the two types of intercourse remain separate, but the force and insubstantial incapacity counts can be committed with the same conduct, so they merge, and there's no asportation or separate harm, so the kidnapping counts merge as well.
There's a backstory here, too. During the course of the investigation, the police obtained Trotter's wife's consent to seize the family computer's, where they found child porn. Trotter was charged with that as well, but midway through his first trial, the judge sua sponte granted a motion to suppress it, finding that there was no connection between the rape and the computers. The State appealed that, and the 8th District reversed, correctly finding that probable cause or reasonable suspicion wasn't necessary where there was consent. (There was also the little matter of no motion to suppress having been filed.) So what happened to the porn charges at the retrial? The judge found Trotter not guilty of those.
So maybe there was a reason to waive the jury...
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